Tu quoque is not a logical reply; but at the tail of an argument it does not come amiss. Well, then, in England the law recognises no other marriages than those contracted before the parson or the registrar. Let a Protestant and a Catholic therefore get married before a priest, without the presence or knowledge of the parson or the registrar, it is a valid marriage in the eyes of the Catholic Church and binds the conscience of the Catholic party; but it is no marriage in the eyes of the law. So far the case is the exact converse of the Ne temere Decree. But it goes farther; for it holds not only in the case of a Protestant and Catholic but also in the case of two Catholics. The law of the land will not recognise a marriage contracted by two Catholics in their own church and before their own priest, unless the registrar or the parson be present. On the contrary, the Ne temere Decree does not in any sense touch the case of two Protestants. Now, Catholics think, and justly so, that a priest is quite as qualified a witness for the marriage of Catholics as the parson is for the marriage of Protestants, or as the registrar is for the marriage of either. The Catholics have in this a real grievance; and they feel it; yet their consciences have not been so wounded nor their hearts so broken as to think of exhibiting them bleeding before their country upon election hustings. Political consciences show strange phenomena.
What is decreed by the Motu proprio has been in force since the Constitution Apostolicae Sedis was [pg 445] published in 1869. Yet during those forty-two years nobody seems to have been hurt by it; and nobody seems to have been concerned except Catholics till lately. The Motu proprio obliges Catholics, under threat of excommunication not to bring ecclesiastics before lay tribunals without the permission of their bishop. It binds ecclesiastics equally with lay Catholics. It does not, and cannot, touch non-Catholics in any sense; a very plain proof of which is that it threatens with excommunication those to whom it applies. That censure of excommunication should convince anyone that the Motu proprio cannot possibly apply to non-Catholics. They are not within the Church; and how could those be put outside it who have not been within it? It applies to Catholics only, whether lay or cleric. But not to all Catholics. The Holy Office issued a Decree in 1870 in which it declared that “the excommunication does not affect subordinates, even though they be judges.” A Catholic functionary acting in his official capacity does not come under the Decree. It will at once then be seen how unfair are the following words spoken by Mr. Campbell, who represents the Dublin University in Parliament. Speaking at a meeting in Dublin on January 4th, 1912, he said of two Irish Catholic Judges: “They might be called upon any day in the exercise of their duty to their Sovereign to put the law in force against a Catholic priest. If they did so, ipso facto they incurred excommunication.” He thus explained the meaning of the Motu proprio for his audience, in face of the following words which he also read for his audience. The excommunication is against “those who compel, whether directly or indirectly, lay judges to summon ecclesiastical persons before lay tribunals.” Thus the excommunication is against those who compel [pg 446] the judges; so that Mr. Campbell's interpretation implies that the judges are one and the same with those who compel them. Catholics, then, and Catholics only (clerics as well as lay) are forbidden to bring ecclesiastics before lay tribunals, without the permission of their bishop; which permission, the Holy Office decrees, “the bishop shall never refuse, in case he fails to reconcile the parties.” If a Catholic (lay or ecclesiastic) thinks that an ecclesiastic, for instance, owes him a debt, and the ecclesiastic denies it and refuses to pay, the Catholic (priest or layman) who makes the claim is bound by the Motu proprio to have recourse to the bishop first, in order to have the matter arranged amicably. If the bishop fails to settle it, he is not left free to give or refuse his consent to have the case brought before the Civil Court. The Holy Office decrees that “he shall never refuse.” Even in those times and countries when and where Ecclesiastical Courts existed to try the civil cases of clerics, the purpose of the Privilegium Fori was not to grant ecclesiastics any immunity from the civil law of their country, but to provide that in their civil cases they should be tried by an Ecclesiastical Court. The privilege was not as to the law of the land, but as to the court that was to try them according to that law.
What the Motu proprio orders is just what Catholic instinct moves every Catholic worthy of the name to do. In Ireland and everywhere, Catholics, and many Protestants also, if they think they have a cause of complaint against a priest, for debt or otherwise, make known their case first to his bishop. If the bishop fails to compose the question, then they bring the case before the lay tribunals; permission to do which, as the Holy Office lays down, the bishop “shall never refuse.”
I have explained the meaning and scope of this Motu proprio as though it applied to Ireland. But according to the evidence of Cardinal Cullen, the highest authority on Canon Law who has lived in these countries for a century, the Caput Cogentes of the Apostolicae Sedis does not hold in Ireland; and that being so, the Motu proprio does not apply to Ireland, for it is a confirmation of the Caput Cogentes.
What this awful Motu proprio orders, then, is just what fraternal charity, a sense of the fitness of things, even common sense, would suggest. So befitting does the procedure ordered by the Motu proprio appear to a writer in the January number of The Review of Reviews that he says, “it might very well be extended to all Christian men, whether lay or clerical”; and he suggests that the civil authorities in England would do wisely to take a leaf out of the book of Pius X.
As a matter of fact, something parallel to it exists in every society. There is not an association of any kind in England, Ireland, or elsewhere, which has not some rules which bind its members under pain of expulsion. In Chapter VII. of his “Middle Ages,” Hallam writes:
“The spiritual Courts in England, whose jurisdiction is so multifarious, and in general so little of a religious nature, had, till lately, no means of compelling an appearance much less of enforcing a sentence, but by excommunication.”
He writes in a note:
“By a recent Statute, the 33 Geo. III., c. 127, the writ, de excommunicato capiendo, as a process in contempt was abolished in England, but retained in Ireland.”
Both in England and in Ireland there are, of course, rules for expulsion, or excommunication, in every union, society, and club in the country. But a rule [pg 448] more like the Motu proprio than any that I know of, is in the constitutions of the Dublin University which Mr. Campbell represents in Parliament. According to Letters Patent 13 Charles I.: